Middlesex University Research Repository An open access repository of Middlesex University research http://eprints.mdx.ac.uk Donald, Alice ORCID logoORCID: https://orcid.org/0000-0001-8541-3530 (2014) The implementation and impact of the Human Rights Act 1998 in the UK. [Doctorate by Public Works] Final accepted version (with author’s formatting) This version is available at: https://eprints.mdx.ac.uk/13776/ Copyright: MiddlesexUniversityResearchRepositorymakestheUniversity’sresearchavailableelectronically. Copyright and moral rights to this work are retained by the author and/or other copyright owners unlessotherwisestated. Theworkissuppliedontheunderstandingthatanyuseforcommercialgain is strictly forbidden. A copy may be downloaded for personal, non-commercial, research or study without prior permission and without charge. 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See also repository copyright: re-use policy: http://eprints.mdx.ac.uk/policies.html#copy Candidate's Declaration Form Name of candidate: Alice Donald Title: The Implementation and Impact of the Human Rights Act 1998 in the UK Degree for which thesis is submitted: PhD by Public Works I declare that while registered as a candidate for the University's research degree, I have not been a registered candidate or an enrolled student for an award of another university, academic or professional institution. I declare that no material contained in the thesis has been used in any other submission for an academic award. Signature of candidate ........................................................................... Date .......................... THE IMPLEMENTATION AND IMPACT OF THE HUMAN RIGHTS ACT 1998 IN THE UK A Context Statement submitted to Middlesex University in partial fulfilment of the requirements for the degree of Doctor of Philosophy by Public Works. Alice Donald School of Law Middlesex University December 2013 CONTENTS Page Acknowledgements i Abbreviations ii Personal background iii Abstract iv Guide to context statement v 1. INTRODUCTION 1 1.1 Conceptual framework 1 (i) The issue of who decides 2 (ii) Law as a culture of justification 5 (iii) Inter-institutional collaboration 6 (iv) The state of debate in the UK 9 1.2 Overview of publications 10 (i) Type and provenance of publications 11 (ii) Quality control 14 (iii) Geographical remit 14 1.3 Methodology 15 2. LEGAL AND POLITICAL CONTEXT 17 3. HUMAN RIGHTS AND PUBLIC SERVICES 22 3.1 What is a human rights culture or a human rights-based approach? 23 3.2 Embedding human rights: the institutional dimension 26 (i) Positive obligations 26 (ii) Participation of service users 28 (iii) Human rights as a framework for decision-making 31 a. Structures and processes 32 b. Human rights-based policy change 33 3.3 The impact of human rights judgments 36 (i) Levers to achieving impact 38 (ii) Barriers to achieving impact 41 a. Perceptions of human rights 41 b. Development and dissemination of generalisable principles 43 c. Receptiveness of public authorities 44 d. The implementation cycle 46 3.4 Identifying impact: the evidentiary challenge 48 3.5 Human rights, poverty and social exclusion 51 3.6 The context of devolution 55 3.7 Conclusion 58 4. CONTROVERSIES ABOUT HUMAN RIGHTS 61 4.1 The conduct of debate about human rights 61 (i) Debate about the HRA 62 (ii) Debate about the European Court of Human Rights 63 (iii) Public opinion about human rights 69 4.2 Initiatives to create a new UK bill of rights 71 (i) Bills of rights and process-driven constitutionalism 71 (ii) Principles for designing a bill of rights process 73 a. Non-regression 75 b. Transparency 76 c. Independence 77 d. Inclusivity 77 e. Education and information 79 (iii) Achieving democratic legitimacy for a UK bill of rights 79 a. Consultation on a Bill of Rights and Responsibilities 79 b. Consultation run by the Commission in a Bill of Rights 80 c. The context of devolution 82 d. Assessing the recommendations of the Commission on a Bill of Rights 83 4.3 Human rights, equality and religion or belief 84 (i) The nature of the controversy 84 (ii) The social significance of legal judgments 87 (iii) Advancing debate about religion or belief 89 a. Areas of consensus 89 b. Alternatives to litigation 90 c. Ground rules for the conduct of debate 91 4.4 Conclusion 93 5. OVERALL CONTRIBUTION OF RESEARCH 93 6. CURRENT AND FUTURE RESEARCH 94 ANNEX A – LIST OF PUBLIC WORKS SUBMITTED 96 ANNEX B – JOINT AUTHORSHIP AND COLLABORATION 98 Acknowledgements Warm thanks are due to my supervisors, Dr Elvira Dominguez-Redondo and Professor Philip Leach, for their generous encouragement and astute advice. I am also very grateful to Professor Joshua Castellino, Dean of the School of Law at Middlesex University, for the support he has extended to me in numerous ways during 2013. i Abbreviations BIHR British Institute of Human Rights CPA Child Poverty Act 2010 CRC UN Convention on the Rights of the Child ECHR European Convention on Human Rights ECtHR European Court of Human Rights EHRC Equality and Human Rights Commission HRA Human Rights Act ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights JCHR Joint Committee on Human Rights JRF Joseph Rowntree Foundation NIHRC Northern Ireland Human Rights Commission NHRI National Human Rights Institution SHRC Scottish Human Rights Commission ii Personal background I graduated in 1987 with a First Class Honours degree in History from Emmanuel College, Cambridge University. After a period of employment in voluntary sector organisations in the UK and the Philippines, the first phase of my career spanned 14 years (1991-2005) as a radio and online journalist, journalism trainer, editor and commissioner in the BBC World Service. Among other roles, from 1999-2004, I edited the daily news and current affairs radio programme East Asia Today. I gained first-hand experience of reporting on, or coordinating coverage of, events with a strong human rights dimension in authoritarian (or recently authoritarian) states such as China, North Korea, Burma, Laos, Indonesia and the Philippines. In 2005, I left the BBC in order to pursue a new career in academic research and teaching in the field of human rights. In 2006, I passed the MSc Human Rights at the London School of Economics with Distinction. My intention in taking the MSc was to build on my experience of reporting (and voluntary activism) on human rights issues by exploring the historical and philosophical origins of human rights and their potential to influence policy and animate social movements, through both the legal process and other forms of social action. I was aware of the prominence of human rights in the UK, and in particular the purported tension between human rights and public security in the context of the ‘war on terror’. I was struck by the disjuncture between the ubiquity and near incontestability of the human rights discourse internationally and its increasingly contentious profile in the UK. I was attracted by the inter-disciplinary nature of the MSc because I consider that the subject of human rights is strengthened when it extends beyond the legal sphere and engages, as my work has subsequently done, with disciplines such as social policy and democratic theory. From 2006, I worked for four years as an independent consultant. Initially, my consultancies were in the field of media and communications; I undertook research, evaluations, training and teaching for, among others, the United Nations Scientific and Cultural Organisation; Polis (the centre for the study of journalism and society at LSE), the BBC, the Foreign and Commonwealth Office, the Joseph Rowntree Foundation and the Catholic Fund for Overseas Development. Over time, I successfully developed bids for and completed research projects in the fields of human rights, with the first research outputs being published in 2009. Several of these were conducted jointly with the Human Rights and Social Justice Research Institute at London Metropolitan University. In June 2010, I joined the Institute as a Senior Research Fellow. In January 2013, I moved to Middlesex University along with my colleague Professor Philip Leach and the European Human Rights Advocacy Centre. The publications submitted for this PhD originate from research conducted while I was an independent consultant and while employed at London Metropolitan University. iii Abstract The premise of my research is an understanding of human rights not only as a technical, legal discourse but also as a set of standards and principles which, when applied outside the courts, provide a framework for decision-making, a vehicle for social and organisational change, and a basis for moral, as well as legal, claims upon the exercise of power. My research proceeds within the conceptual framework provided by recent theory conceiving of a democratic legal order which includes human rights as a ‘culture of justification’ - a culture in which exercises of power, or failures to exercise power, which impinge upon human rights require reasoned public justification that is open to independent scrutiny. In this statement I divide my research into two strands. The first concerns the application of human rights standards and principles in public services. Its distinct contribution lies in the use of empirical research methods to explore how, and with what results, public authorities have embedded human rights standards and principles in decision- making since the enactment of the Human Rights Act (HRA) 1998. This inquiry contributes to the emergent understanding of what constitutes a ‘human rights culture’ in public services, in both empirical and normative terms. I identify factors that tend either to encourage or inhibit the systematic application of human rights at the levels of both individuated and corporate decision-making. I conclude that a human rights culture has largely failed to materialise among public authorities. However, I identify variation between the nations of the UK (with more explicit adoption of human rights standards in the devolved nations) and between public authorities (with a few that demonstrate what an overtly ‘rights-respecting’ service looks like). I evaluate the evidence that may be adduced as to the impact of human rights in public services and propose how evaluative work might proceed in the future. The second strand of my research concerns the political discourse surrounding the HRA and, in particular, initiatives to create a new UK bill of rights. I identify principles and methods that have been used to create bills of rights in comparable jurisdictions, situating these within the post-war trend towards ‘process-driven constitutionalism’. I evaluate bills of rights processes in the UK in the light of this experience. I conclude that conditions for reform of human rights law in the UK are deeply unfavourable and that the consultative processes pursued by successive governments are ill-designed to achieve democratic legitimacy for the project. My research establishes that dissensus on human rights in the UK traverses the ‘fault lines’ of profound social and political antagonisms. These include the relationship between the individual and the community, commonly invoked through the lens of ‘rights and responsibilities’; between the nation state and Europe; and between parliament and the courts. Human rights have also become a prime venue for the negotiation of religious and cultural differences. Within this turbulent context, my research proposes ways of advancing debate about human rights such that it meets the requirements of open justification. iv Guide to context statement Part 1 of this statement introduces my research in relation to the conceptual frameworks to which it connects; the provenance of my publications and the methodology employed. Part 2 outlines the political and legal context in which I conducted my research. Structured around the two principal strands of my research, parts 3 and 4 provide a synoptic account of its main themes and findings and explain its contribution to the socio- legal study of human rights. I draw some overall conclusions of my research in part 5 and in part 6, I explain my current research and how I wish to develop my research interests in the future. While the statement focuses principally on the findings of my research at the time of publication, I have also taken the opportunity to update aspects of it in order to show where subsequent developments either reinforce my findings or, conversely, where there are grounds to think that the findings might need to be revised in the light of new evidence and/or where further research is required to determine whether such revision might be necessary. Several of my publications have been co-authored and/or co-researched with others. For concision, I do not refer to this co-authorship every time that I refer to a specific publication. Annex B sets out in detail the division of labour with respect to the various co- authored or co-researched publications. v